Exhibit 10.1
STOCK PURCHASE AGREEMENT
WITH ASSIGNMENT OF VOTING RIGHTS AND GENERAL RELEASE
This Stock Purchase Agreement (the
“Agreement”) is entered into this 2 nd day of May 2008
(the “Effective Date”) by and between Scorpion
Performance, Inc., a Florida corporation (the “Company”
or “Purchaser”) and Yali Golan and Leslie Golan, as
joint tenants (each a “Seller” and together, the
“Sellers”).
RECITALS
(i) Sellers beneficially own, as
joint tenants, 10,000,000 shares of the common stock of the Company
(the “Shares”).
(ii) The Shares are subject to a
lock up letter agreement dated August 28, 2007 (the “
Lock Up Agreement”).
(iii) Sellers desire to sell to
the Company, and the Company desires to purchase from Sellers, all
of the Shares owned by Sellers subject to permitted transfer under
the Lock Up Agreement, as amended, and subject to the terms and
conditions set forth in this Agreement.
(iv) The Company believes that
the purchase of the Shares is in the best interest of the
Company’s shareholders because of the fairness of the terms
and the expected benefit of improving capitalization by reducing
the number of shares of common stock issued and outstanding.
(v) As a condition to the
willingness of the Sellers to sell the Shares, the Company has
agreed (a) to purchase the Shares at a price of $0.25 per
Share with (b) a purchase price to be paid at closing
consisting of cash and the balance due in the form of a note to be
secured by real property located in Broward County subject to a
mortgage and security agreement. The Shares shall be held in escrow
until the note and interest are paid in full at which time, the
Shares will be retired to the treasury of the Company.
(vi) As a condition to the
willingness of the Company to purchase the Shares, (a) Yali
Golan has agreed to resign as director of the Company;
(b) each of the Sellers has agreed to grant to the Company an
irrevocable proxy and to assign to the Company any and all voting
rights in and to the Shares; and (c) each of the Sellers has
agreed to release the Company from all claims arising from any and
all matters related to the Shares, Mr. Golan’s
appointment and resignation as officer and/or director, or other
similar or related matters between the parties (except for the
obligations in this Agreement).
(vii) In accordance with and
subject to the terms and provisions set forth in this Agreement,
the Sellers and the Company have agreed to enter into other related
documents and agreements including, but not limited to, an addendum
to the Lock Up
C-1
Agreement; a secured note in the principal amount of $2,000,000.00
(the “Note”); and a mortgage and security agreement
relating to the collateral securing the Note (the “Mortgage
and Security Agreement”), collectively, the “Related
Transaction Documents”.
NOW, THEREFORE, in consideration of
these premises and of the respective representations, warranties,
covenants, agreements and conditions contained in this Agreement,
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1) RECITALS. Sellers and the Company
agree that the recitals set forth above are true and correct and
are incorporated herein by reference.
2) PURCHASE AND SALE OF THE SHARES.
Subject to the terms and conditions of this Agreement, Sellers
hereby sell, convey, assign, transfer and deliver to the Company
and the Company hereby purchases from Sellers, 10,000,000 shares of
the common stock of the Company that represents all of the issued
and outstanding Shares owned by the Sellers.
a) The
Company shall purchase the Shares for Two Million Five Hundred
Thousand Dollars and No/100 ($2,500,000.00) (the “Purchase
Price”) consisting of (i) cash purchase price of Five
Hundred Thousand Dollars and No/100 ($500,000.00) to be delivered
as set forth in Section 3(a)(i); and (ii) a secured note in
the amount of Two Million Dollars and No/100 ($2,000,000.00) as set
forth in Section 3(a)(ii).
b) As
consideration for the purchase of the Shares by the Company
(i) Yali Golan shall resign as officer and director of the
Company; (ii) the Sellers shall assign all voting rights and
grant to and appoint the Company their proxy and attorney-in-fact
to vote the Shares as set forth in Section 5; and
(iii) the Sellers jointly and severally agree to release the
Company and any officer, director, employee, agent, affiliate, and
permitted assignee of the Company from matters specifically arising
from any and all matters related to the Shares,
Mr. Golan’s appointment and resignation as officer
and/or director, or other similar or related matters between the
parties, as set forth in Section 6.
3) CLOSING. The closing of the
transactions described in this Agreement (the
“Closing”) shall take place at the offices of the
Company at such time as shall be mutually agreed upon by the
parties (the “Closing Date”). If agreed to by all of
the parties, the Closing may take place through the exchange of
documents by facsimile, email and/or recognized next-day courier
service, except that stock certificate(s) for the Shares and the
Note shall only be delivered in person or by recognized next-day
courier service.
a) At
Closing, the Company shall deliver to Sellers:
| |
i) |
|
Five Hundred Thousand Dollars and No/100 ($500,000.00) (the
“Cash Purchase Price”) via check or wire transfer to
the order of Sellers; |
| |
| |
ii) |
|
Two Million Dollars and No/100 ($2,000,000.00) in the form of a
signed Note in the form set forth in Exhibit A ; and |
| |
| |
iii) |
|
Signed Mortgage and Security Agreement in the form set forth in
Exhibit B. |
b) At
Closing, Sellers shall deliver to the Company the following
documents which receipt of such documents by the Company shall be a
condition precedent to the Company’s obligation to close the
transactions contemplated herein:
| |
i) |
|
Signed written consent by Yali Golan as director of the Company
memorializing and authorizing the terms and conditions of the stock
buy back; |
| |
| |
ii) |
|
Signed Addendum to the Lock Up Agreement; |
| |
| |
iii) |
|
Signed written resignation of Yali Golan as officer and
director of the Company effective as of the Closing Date; and |
| |
| |
iv) |
|
One or more certificate(s) representing the Shares, together
with a duly executed stock power and assignment in the form
attached as Exhibit C , to be held in escrow as set
forth in Section 4. |
4) ESCROW OF SHARES. The Shares shall
be held and disposed of in accordance with the following
provisions:
a) The
Company shall retain custody of the Shares in trust until the
entire principal amount of the Note and accrued interest, shall
have been paid in accordance with the terms of the Note.
b) In
the event that any distribution in the form of securities of the
same class or series of the Shares, or a substantially equivalent
class or series to any of the Shares is made on the Shares, such
additional securities shall be immediately delivered to the Company
and become a part of the securities being held by the Company under
this Agreement.
c) Upon
the full payment of the Note, together with any accrued interest,
the Shares shall be released from escrow and retired to the
treasury of the Company.
5) VOTING RIGHTS/IRREVOCABLE PROXY.
Each Seller hereby assigns to the Company, any and all voting,
equity, or ownership interest in and to the Shares and irrevocably
grants to, and appoints the Company and any individual designated
by the Company, and each of them individually, as its proxy and
attorney-in-fact (with full power of substitution), for and in its
name, place and stead, to vote the Shares at any meeting of the
shareholders of the Company and/or upon any and all matters to be
decided by a vote of the shareholders eligible to vote. Each Seller
hereby (i) affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked;
(ii) affirms that the irrevocable proxy shall remain in effect
during the term of this Agreement; (iii) ratifies and confirms
that the proxies appointed hereunder may take such actions as are
permitted by law; and (iv) affirms that such irrevocable proxy
is executed and intended to be irrevocable in accordance with the
provisions of Section 607.0722(5) of the Florida Business
Corporation Act. Notwithstanding any other provisions of this
Agreement, the irrevocable proxy granted hereunder shall
automatically terminate upon the full payment of the Note, together
with any accrued interest, at which time the Shares shall be
released from escrow and retired to the treasury of the
Company.
6) GENERAL RELEASES.
a)
General Release from Sellers . Each Seller hereby
immediately and forever releases, remises, acquits, satisfies and
discharges the Company, and any and all of its officers, directors,
agents, servants and employees, from any and all manner of claims,
benefits, rights, sums of money, causes of action, suits, debts,
obligations, losses, expenses, liabilities, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, in law or in equity, of
whatever nature or kind, known or unknown, which said Seller ever
had, now has, or which any personal representative, successor, heir
or assign of said Seller hereafter can, shall or may have, against
the Company and/or any and all of its officers, directors, agents,
servants and employees, upon or by reason of any matter, cause or
thing whatsoever, from the beginning of the world to the day of
execution of Agreement, including any matter, cause or thing
specifically arising from (i) any and all matters related to the
Shares; (ii) any and all matters arising in connection with
Mr. Golan’s appointment and resignation as officer and/or
director of the Company; (iii) except for the present
transaction, any financial obligations or understandings between
the parties concerning promissory notes, compensation, expense
reimbursement or otherwise; or (iv) other similar or related
matters between the parties except for the obligation of the
Company to pay the Sellers the amounts set forth in
Section 2.
b)
General Release from the Company . The Company hereby
immediately and forever releases, remises, acquits, satisfies and
discharges each of the Sellers and their respective successors,
legal representatives and permitted assignees
from any
and all manner of claims, benefits, rights, sums of money, causes
of action, including any negligence claims, suits, debts,
obligations, losses, expenses, liabilities, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, in law or in equity, of
whatever nature or kind, known or unknown, which the Company ever
had, now has, or which any of its officers, directors, agents,
servants and employees hereafter can, shall or may have, against
the Sellers and their respective successors, legal representatives
and permitted assignees, upon or by reason of any matter, cause or
thing whatsoever, from the beginning of the world to the day of
execution of Agreement. Notwithstanding anything to the contrary in
this paragraph, Sellers are not released from any acts or omissions
that are knowingly wrongful or any acts or omissions that are
intentionally wrongful.
c) The
Company, on the one hand, and each of the Sellers, on the other
hand, understand, acknowledge and agree that the execution of this
general release constitutes a compromise of any and all claims
involving legal and factual questions specifically arising from any
and all matters related to the relationships between the parties.
Notwithstanding th
|
